Savino v. City of New York

• Decision Date: 10 July 2003
• Docket Number: Docket No. 02-7108.
• Parties: JOSEPH V. SAVINO and ERNESTINE SAVINO, <I>Plaintiffs-Appellees,</I> v. THE CITY OF NEW YORK, KYLE RAYMOND STURCKEN, MICHAEL GARGAN, RAYMOND DOWD, DAVID BARTHOLOMEW, JOHN BANER, SHARON BROOKS, JOSE PEREZ, HOWARD WILSON and JOHN DOES &#34;1&#34; through &#34;3,&#34; <I>Defendants-Appellants.</I>
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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JOSEPH V. SAVINO and ERNESTINE SAVINO, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, KYLE RAYMOND STURCKEN, MICHAEL GARGAN, RAYMOND DOWD, DAVID BARTHOLOMEW, JOHN BANER, SHARON BROOKS, JOSE PEREZ, HOWARD WILSON and JOHN DOES "1" through "3," Defendants-Appellants.

Docket No. 02-7108.

United States Court of Appeals, Second Circuit.

Argued October 24, 2002.

Decided May 22, 2003.

Errata Filed June 2, 2003.

Errata Filed July 10, 2003.

Joseph V. Savino, a former medico-legal investigator in the New York City Office of the Chief Medical Examiner, brought suit on December 8, 1997 against the City of New York and several members of the New York Department of Investigation and the New York Police Department. The complaint alleges violations of 42 U.S.C. § 1983 and various state-law torts arising out of the unsuccessful criminal prosecution of Savino for the theft of a ring from a crime scene. The District Court (Miriam Goldman Cedarbaum, Judge) granted in part and denied in part defendants' motion for summary judgment on qualified immunity grounds. On appeal, defendants challenge the District Court's conclusion that they are not entitled to summary judgment on Savino's false arrest, malicious prosecution, and abuse of process claims, or his § 1983 claims based on these state-law causes of action. We hold that defendants are entitled to qualified immunity.

Reversed and remanded.

PAUL L. HERZFELD, (Stuart I. Parker and Francis F. Caputo, of counsel, Michael A. Cardozo, Corporation Counsel of the City of New York, on the brief), New York, NY, for Defendants-Appellants.

D. DANIEL ENGSTRAND, Jr., Doniger & Engstrand, LLP, Islandia, NY, for Plaintiffs-Appellees.

Before: VAN GRAAFEILAND, JACOBS and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This appeal addresses whether plaintiff's suit can survive defendants' motion for summary judgment on qualified immunity grounds with respect to his state-law claims for false arrest, malicious prosecution and abuse of process, and with respect to his § 1983 claim based on these state-law causes of action. We hold that defendants are entitled to summary judgment on qualified immunity grounds. Accordingly, we reverse and remand with instructions to the District Court to enter judgment in favor of defendants.

I. BACKGROUND

Joseph V. Savino, a former medico-legal investigator in the New York City Office of the Chief Medical Examiner, filed this action in the United States District Court for the Southern District of New York on December 8, 1997 against the City of New York ("City") and several members of the New York Department of Investigation ("DOI") and the New York Police Department.¹ The relevant background is set forth in the District Court's October 30, 2001 opinion and order granting in part and denying in part defendants' motion for summary judgment. Savino v. City of New York, 168 F. Supp. 2d 172, 174-177 (S.D.N.Y. 2001). We assume familiarity with that opinion and restate here only such information as is necessary to resolve this appeal.

In late 1994 and throughout 1995, Savino had been widely described in the New York news media as the highest paid City employee based on his overtime earnings, and was dubbed by some in the media as the "King of Overtime." On February 12, 1995, Savino left the scene of a crime with a gold ring belonging to the dead victim.² Savino claimed that the removal of the ring was accidental but on June 26, 1996, following an investigation by the DOI, he was arrested and charged with various crimes relating to the alleged theft.³ In September 1996, a New York State grand jury indicted Savino on these charges. A petit jury acquitted Savino on all counts on January 27, 1997.

In his complaint, Savino alleges that he was prosecuted for the theft of the ring as retaliation for the embarrassing media attention stemming from his allegedly exorbitant overtime pay. He asserts claims against defendants for (1) various state-law torts, including false arrest, malicious prosecution, and abuse of process, (2) violations of 42 U.S.C. § 1983 based on these state-law causes of action, and (3) violations of Article I, Sections 6 and 12 of the New York State Constitution.

On February 16, 2001, defendants moved for summary judgment on qualified immunity grounds, and on October 31, 2001, the District Court (Miriam Goldman Cedarbaum, Judge) granted in part and denied in part defendants' motion for summary judgment. Savino, 168 F. Supp. 2d at 181.

Specifically, the District Court granted summary judgment to all of the defendants on Savino's claims of defamation, negligence, intentional infliction of emotional distress, and violation of the New York Constitution. Id. at 178-79. It also granted summary judgment to the police-officer defendants (Gargan, Dowd, Brooks, Bartholomew and Baner) with respect to the false arrest claims because the police officers did not "`affirmatively instigate[] or procure[] [Savino's] arrest,'" id. at 177 (quoting King v. Crossland Savings Bank, 111 F.3d 251, 256-57 (2d Cir. 1997)).

The District Court denied defendants' motion for summary judgment with respect to Savino's claims for malicious prosecution, false arrest (against the DOI defendants and the City), and abuse of process, as well as his § 1983 claims based on these state-law torts.

With respect to the malicious prosecution and false arrest claims, the District Court concluded that the existence of probable cause constitutes a complete defense to both of these statelaw claims, as well as to Savino's § 1983 claims based upon them. Id. at 178. It also determined that "[i]ndictment before a grand jury creates a presumption of probable cause" that is applicable to each of these claims. Id. (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996), and Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 (1983)).

Although Savino was indicted by a grand jury, the District Court concluded that there remained an issue of fact as to whether Savino could rebut the presumption of probable cause arising from his indictment. The District Court noted that this presumption can be rebutted "by evidence that the indictment was procured by `fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'" Id. (quoting Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d at 456). The Court concluded that, based on the current record, defendants might have acted in bad faith. First, the court noted that

[d]efendant Brooks testified at plaintiff's criminal trial that she could see both plaintiff and the decedent's pocketbook while plaintiff was allegedly alone in the hotel room, and that plaintiff did not remove the ring from the pocketbook at that time. This exculpatory evidence, however, was not presented to the grand jury. In the absence of that evidence, the testimony of Gargan and Dowd that plaintiff was alone in the room, and had the opportunity to steal the ring at that time, was misleading.

Id.

With respect to the police-officer defendants, the Court then reasoned: "It is unclear from the record whether the police defendants disclosed Brooks' information to the [prosecuting attorney] or the DOI. If they did not, the failure to do so would be sufficient evidence of bad faith to rebut the presumption created by the indictment with respect to them." Id. It concluded that, "[i]n the absence of the presumption, there are genuine issues of fact with respect to both probable cause and qualified immunity [of the police-officer defendants]." Id. Accordingly, the Court denied the police-officer defendants' motion for summary judgment on Savino's malicious prosecution claim.⁴

The District Court relied on this same line of reasoning to deny summary judgment to the DOI defendants and the City on both the malicious prosecution and false arrest claims. The Court concluded that "[t]he record is . . . unclear as to whether [DOI investigators] Sturcken, Perez and Wilson knew about Brooks' evidence." Id. at 178. Nevertheless, it reasoned:

Sturcken and Perez were actively involved in the investigation, and "where law enforcement authorities are cooperating in an investigation . . . the knowledge of one is presumed shared by all." Illinois v. Andreas, 463 U.S. 765, 772 n. 5 (1983). They, in turn, informed Wilson of their findings. Since on a motion for summary judgment all inferences must be drawn in favor of the non-moving party, I must assume that Wilson was also aware of what Brooks witnessed. Since all three allowed her testimony to be excluded from the grand jury, they are not entitled to a presumption of probable cause created by the indictment. As discussed above, without the presumption, there are genuine issues of fact with respect to probable cause and qualified immunity that the jury must resolve at trial.

Id. at 178-79 (internal citation omitted).

The District Court also denied defendants' motion for summary judgment with respect to the abuse-of-process claim. The Court noted that "`[i]n New York, a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act, (2) with intent to do harm without excuse o[r] justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.'" Id. at 179 (quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)). It concluded that "[a] reasonable jury could infer from the timing of defendants' actions that the overtime issue was the motivating factor in the prosecution." Id. It also noted that "although abuse of process . . . does not require that probable cause be lacking . . . a lack of probable cause creates an inference of malice, supporting the collateral objective element" of this claim. Id. (citing McMullen v. Michigan Home Furnishing Corp., 132 Misc. 838, 839, 230 N.Y.S. 508, 509-10 (N.Y. City Ct. 1928)). For this reason, the District Court denied summary...